Copyrights:
a choice of no-choice for artists and third world countries; the
public domain is losing anyway,
by Joost Smiers

(3) Symposium
on the Struggle Against Piracy, organized by the Stichting Auteursrechtsmanifestaties,
11 December 1997, Amsterdam

(4) Final Report on the Pan-African Colloquium on the Living and
Working Conditions of the Artists, Brazzaville, 20-23 July 1994:
14,5

(5) International Herald Tribune 19 February 1996

(6) Le Monde, 30 Octobre 1997

(7) Symposium
on the Struggle Against Piracy, organized by the Stichting Auteursrechtsmanifestaties,
11 December 1997, Amsterdam.

(8) M.Edwards, Head of Operations of IFPI, the International Federation
of Phonographic Industry, at the Symposium on the Struggle Against
Piracy, organized by the Stichting Auteursrechtsmanifestaties, 11
December 1997, Amsterdam

(9) John Gray claims: 'The truth is that free markets are creatures
of state power . . . In the absence of a strong state dedicated
to a liberal economic programme, markets will inevitably be encumbered
by a myriad of constraints and regulations. These will arise spontaneously,
in response to specific social problems, not as elements in any
grand design. . . . Encumbered markets are the norm in every society,
whereas free markets are a product of artifice, design and political
coercion. Laissez-faire must be centrally planned; regulated markets
just happen. The free market is not, as New Right thinkers have
imagined or claimed, a gift of social evolution. It is an endproduct
of social engineering and unyielding political will.' (Gray, 1998:
17)

(10) Interview with Bonnie Richardson, MPAA, 2 December 1994

(11) Interview with Bonnie Richardson, MPAA, 2 December 1994

(12) Interview
with Atsen Ahua, April 1998

(13) Interview
with Bonnie Richardson, spokeswoman of the MPAA, 2 December 1994

(14) World Trade
Organization.

1. piracy

Who tries to
follow the debates on intellectual rights must get the impression
that there is only one real issue which is spoiling the atmosphere
of a booming and socially and culturally useful business. This is
piracy. Therefore James Boyle observes: 'Piracy of intellectual
property products has become one of the central concerns in negotiations
on world trade, a concern where both the figures for projected losses
and the rethoric of condemnation are surprising to the neophyte'
(1996: 121).

The projected
losses are considerable indeed. The International Federation of
Phonogram and Videogram Producers (IFPI) estimates that 25 per cent
of the music phonograms sold throughout the world are pirate copies
(Burnett, 1996: 88,9). The Recording Industry Association of America
claims that in Thailand alone 1992 trade losses were estimated at
$24 million. Its estimate for worldwide losses in 1994 was $2.245
billion (Boyle, 1996: 121). Piracy costs the recording industry
in Europe an estimated $3billion per year. The side effect is that
this would cost the authorities in Europe up to $750 million each
year in lost VAT alone, and about 30.000 jobs, according to M.Edwards,
Head of Operations of IFPI, the International Federation of Phonographic
Industry (3). Hervé-Simon Jewell, president of the African
Association against Piracy emphasizes 'the need to stamp out piracy
in Africa, which was significantly on the increase again, bringing
to some $600 million a year the sums misappropriated from artists'
earnings from copyright and neighbouring rights.'(4)

Where there
is piracy there must be pirates. In China there are - or there were,
who knows? - quite a few of them. Greg Mastel calls in the International
Herald Tribune China's Theft of Intellectual Property No Mickey
Mouse Issue. 'For example, some 30 Chinese factories daily turn
out thousands of illegal compact disks that find their way to markets
as far away as Canada (5).' This issue troubles more the relation
between the U.S.A. and China than any infringement on human rights.
Singapore is also famous for piracy activities (Bender, 1994: 485).
In Bulgaria some twenty five million CD's are supposed to be produced
every year (6). And with the cassette Kenya got its own flourishing
pirate industry (Malm, 1992: 87), which seems to have found now,
after control in Kenya has improved, a save haven in Tanzania from
where the whole region is provided with pirated cassettes. Those
are not the only and not the last countries where the multiplication
of audio, visual and literary creations has become an industry.

With the introduction
of the DVD pirates will get a still bigger competitive advantage
to legal producers and distributors in the audio- and image-markets.
Piracy becomes more than ever a profitable calculated risk. More
can be stored on a DVD which costs the pirate nothing while the
legal entrepreneur has additional expenses for producing more software.
There is also no quality difference between the legal and the pirated
copies. One of the reasons why mass scale piracy is nearly unavoidable
is the increase in excess production capacity of cd's and so on.
'There is currently more than the double manufacturing capacity
available worldwide than is needed for legitimate production.' The
cost of new and secondhand machinery is falling. 'For example the
new ODME miniliner costs $500.000 and has the capacity to produce
five million cd's a year (7).' Actually the major right holders
are causing this excess capacity themselves. They operate on very
tensed and nervous markets which "obliges" them to have
instantly sufficient production capacity (8). Isn't this dog eats
tail?

Anyway, for
Bonnie Richardson, spokeswoman for the Motion Picture Association
of America (MPAA) the situation is clear. 'All we are talking about
piracy is theft. One of the fundamental roles of all states is to
protect their citizens against theft.' Despite the proclaimed neoliberalism
a strong state seems to be needed in this field the more digitalization
will bring copying on the easiest level one ever could imagine (9).
'Will protection of intellectual property be adequately cared for
in government regulations as the new information infrastructure
evolves, or will piracy on the Internet become just a massive problem?
That is a very important issue for MPAA, and for the copyright industries,
book, music publishers, recording industry, computer data basis;
all of us care about the protection of what we put over the new
system (10).'

Later in this
article we will see that new methods of reproduction and distribution
are being brought under existing copyright laws. There is growing
a significant expansion of the fields which are covered by intellectual
property rights. For now we will concentrate on the fight against
piracy which finds its organizational focus point in the U.S.A.
Their first task was to get the European countries on their side,
mainly the countries from the European Union. This was not that
difficult because European film and television production industries
share the same interests as American corporations have. 'Furthermore,
the fusion of European and U.S. finance capital within the media
sector puts European and U.S. filmed entertainment companies directly
into alliance, giving West European media capitalists a clear stake
in an effective international intellectual property regime as well
as in "legitimate" homevideo markets' (Bettig, 1996: 213-219).

In order to
be successful a concentrated effort has been launched, according
to Ronald Bettig: 'a combination of active pursuit of copyright
protection by copyright owners, stricter laws and penalties against
piracy, and more effective enforcement of these laws' (1996: 213-219).
There are three levels: information, monitoring, and sanctions.

Bonnie Richardson
is very pleased with the initiative of the United States Information
Agency. 'The USIA has a number of programmes that are helpful in
getting out the message about the protection, the need for protection
of intellectual property. They sponsor the dialogues with countries
that are looking at reviewing their intellectual property laws,
giving the MPAA the chance to participate in the dialogue and get
our views known.' For instance in Russia where crime is epidemic.
'The United States is trying to assist Russia. We as an industry
have participated in a seminar to help educate Russian prosecutors
and law enforcement officials on how to identify pirated product
(11).'

The next stage
is to know whether, where and by whom piracy takes place. 'U.S.
embassies are now routinely used to monitor the infringement of
U.S. trademarks - whether it is Marlboro in Algeria or Mickey Mouse
in China' (Boyle, 1996: 122). Inside the United States the FBI is
active in this field as Bruce Sterling suggests in his novel The
Hacker Crackdown. He describes that someone illicitly had copied
a small piece of Apple's proprietary software. 'Apple called the
FBI. The Bureau takes an interest in highprofile intellectual-property
theft cases, industrial espionage, and theft of trade secrets. These
were likely the right people to call . . .' (1992: 233). Outside
the U.S.A. different kinds of spies are working. 'Richard O'Neill,
a former Green Beret who received a Silver Star and six Bronze Stars
in the Vietnam War, now hunts video pirates in Korea on behalf of
the Motion Picture Export Association of America.' The Korean government,
eager to increase its exports to the United States permits this
private American police operation (posing as a market survey) on
its territory. 'O'Neill has extended its operation to Thailand.'(Barnet,
1994: 142,3)

The purpose
is of course that piracy will be stopped. A whole range of means
must serve this purpose. The soft approach is the one used by several
multinationals like Walt Disney, Paramount and Time Warner. Special
software has been developed for them by which they search on the
Internet. If an infringement has been discovered then they send
a request to remove the copied material from the Net. Mostly this
seems to be effective. If not, the infringer will be sued. The main
interest is to fight largescale infringements. Minor cases will
continue to occur always is their reasoning (Westen-brink, 1996:
88).

There exist
also tougher approaches to fight piracy. Countries may expect trade
sanctions. James Boyle: 'The "Super 301 Regulations" of
the United States Trade Act of 1988 establish a "watch list"
and a "priority watch list" for nations whose lack of
intellectual property safeguards represents a significant trade
barrier to U.S. business (1996: 122).' To avoid such trade sanctions
countries must organize the repression internally. Richard Barnet
and John Cavanagh give the example of Singapore, a small republic
of malls and assembly plants, which is totally dependent on exports.
'Its authoritarian government has gone out of its way to cooperate
with music giants by encating a draconian copyright law that provides
for fiveyear jail sentences and $50.000 fines for possession of
pirated tapes with intent to sell. Teenagers can earn up to $150
by acting as informants for the police (1994: 142).'

A comparable
situation of severe sanctions has been described by Krister Malm
and Roger Wallis concerning Trinidad. 'Throughout the 1980s, music
piracy was rife in Trinidad. The audio cassette market, even for
calypso music, was dominated by streetcorner pirates. Such cassettes
often provided entertainment in taxis as well as in socalled maxitaxis
(minibuses) that constitute the better part of the Trinidad public
transport system. Thus they also functioned as a form of promotion
of the music and artists featured/pirated. In 1986, lobbying by
the Copyright Organization of Trinidad and Tobago (COTT, formed
in 1985) led the government introducing fairly severe legal sanctions
for cassette piracy. These include prison sentences of up to six
months for the first offence and up to two years for any subsequent
offence. As a result, the most obvious forms of streetcorner music
piracy of calypso music have been wiped out. Cassette piracy has
been limited to foreign music. Exceptions occur in the carnival
season when local calypso and soca hits are likely to appear on
"top hit" sampler tapes featuring "diverse artists"
(1992: 67,8).' It is interesting to note that the sanctions seem
to work better for local music than for foreign products.

Besides the
track of information, monitoring, and sanctions there are other
ways to try to prevent piracy. Ronald Bettig mentions one of them.
'The filmed entertainment industry has also resorted to market strategies
to capture Middle Eastern homevideo markets for "legitimate"
distributors. These efforts include offering a video product with
a superior visual image to that of pirated products, supplying a
dubbed audio track on the prerecorded videocassette or Arabic subtitling,
and releasing prerecorded videocassettes closer to the date of initial
release in the United States. The same combination of government
pressure and market-based strategies are being used throughout Asia
to combat piracy (1996: 213-219).'

Atsen Ahua,
director of Synergies African Ventures told me (12) about a market
approach to prevent piracy which comes forth from local music producers
in Ghana and Nigeria as well. 'They have organized a network of
middlemen and retailers by which thousands of cassettes find their
way rather quickly to buyers all over the country. This makes it
more difficult for pirates to break in this market structure. In
cases they nevertheless have done so they got the chance to operate
within the framework of the network. The market is big enough to
give them also a place under the sun. If they refuse to collaborate
some violence may be necessary to bring them back to order because
maffia tendencies should be suppressed immediately. We tell them:
"If you copy Rambo, do it, not our products, but come in business
with us. Otherwise you kill us."' According to Atsen Ahua in
a country like Kenya it is more difficult to introduce such a system
because such an entrepreneurial attitude is lacking there, 'people
are more attuned to be employed. Now this is beginning to be changed.'
The system in Ghana has another protection against piracy as well.
On the cassettes a numbered revenue band has been glued like on
cigarette packs. This seems to limit piracy (Bender, 1994: 486).

However, piracy
will continue to happen as long as it will be easy to copy. That
is more and more the case. With digital technologies the thousand's
copy is as good as the first one. This issue becomes even more important
in the future with the further development of laser disks and other
new communication technologies as well. Interesting is the observation
by Richard Barnet and John Cavanagh: 'Stars now count on being seen
and heard somewhere around the world many times a day. But the bigger
the hit, the more likely it is that its creators and owners will
have to share the profits with pirates. While intellectuals and
politicians in poor countries denounced the "cultural imperialism"
of the global media giants, underground entrepreneurs did something
about it (1994: 142).' Dave Laing makes the probably unexpected
claim that, 'piracy's most important effect is not the damage it
does to the income of transnational companies and their recording
artists, but the way in which it encourages the spread of international
music and discourages the full development of national recordings
in many countries (Quoted in: Burnett, 1996: 88,9).'

It is unlikely
that the war against big maffia syndicates, which make fortunes
with piracy, may be won. It looks like the war on drugs. Nowadays
precise control by the state is out of fashion; globalisation has
as a consequence that transport and production follow their own
rules; it is not that difficult to find save heavens for black money;
corruption is becoming common practice in a deregulated world: those
are excellent ingredients for lucrative activities in the fields
of piracy and drugs, and both circuits mix, together with illegal
trade in weapons.

Undeniably a sharp contradiction exists between the producers of
soft ware and hard ware. For hard ware producers it is interesting
to sell machines which can copy easily. And this is exactly what
film, music, and book producers hate. The risk that their soft ware
will be copied manyfold the next day and even with a good quality
makes them hesitate to put their stuff, for example, on pay-per-view.

Bonnie Richardson,
spokeswoman of the MPAA: 'One of the things we domestically are
looking at and we are talking about internationally is the need
to look at technological safeguards to be build into the next generation
VCRs or laser disks, the hard ware, as well as having governments
their legal systems make it a crime to defeat those kinds of technological
safeguards. We as an industry are working with our government on
in the next years to make sure that our own legal system recognises
the importance of protecting technological safeguards and we are
working with manufacturers of the hard ware to get some agreement
there on what kind of technological safeguards will be made (13).'

What we thus
see, again and again, is that strong advocates of the free market
ask at the same time for strong state regulations. What we may see
too are internal contradictions inside huge corporations which produce
soft ware and hard ware as well. Those divisions actually are in
competition with each other while having different interests. This
is one of the weak points of the synergies arguments and practices
of the big mergers in the field of communication enterprises in
the recent past, as described by Richard Barnet and John Cavanagh:
'All sorts of new wrinkles in hardware development could eventually
render the compromise between the producers of sound equipment and
the producers of music obsolete. Electronics-hardware companies
have picked up three of the six record majors and several of the
most successful independent record labels. This means that future
fights over entertainment technology will increasingly take place
inside megacorporations rather then between them (1994: 145).'

All those piracy
and hunt on piracy questions have become more acute because of changes
in trade and technology which have started the last twenty years.
Intellectual content has become more important, and trade has reflected
this change. Moreover, technology has become the driving engine
of economic activity. At the core of technology are proprietary
rights - copyrights, patents, trade secrets and trademarks.

In this context
the ownership of intellectual rights have become one of the corner
stones of international business. This has put pressure on governments
to bring intellectual property protection and trade policy in the
same framework, in an international framework. This has resulted
in TRIPs, the WTO (14) agreement on Trade Related Intellectual Property
Rights. Emery Simon describes the broad range TRIPs covers. 'The
TRIPs text provides for the establishment of standards for protecting
a full range of intellectual property rights and the enforcement
of those standards both internally and at the border. . . . TRIPs
also provides for subjecting these standards and enforcement obligations
to effective multilateral dispute settlement. This is a key change
and a major step forward over a world where countries could not
rely on intellectual property conventions to resolve disputes, and
their only recourse was bilateral action.'

He does not
obscure what kind of interests are most served. 'Through trade tools,
creative individuals and industries have acquired new means for
advancing their business interests. . . . Integration into trade
has also succeeded in establishing the precedent that the law governing
these creative industries had to reflect commercial (trade) realities
(Simon, 1994).'

He is also aware
that not everybody may be content with this state of affairs. 'But
the internalization of creative products has elicited fear and trembling
from domestic competitors less able to produce and sell products
with international appeal. These fears have been translated into
increased pressure to reserve a share of domestic markets for local
industries. Under the cloak of preserving national cultural identity
- a legitimate goal countries have been enacting disguised trade
restrictions - an illegitimate goal (Simon, 1994).'

It may be clear
that he is referring to the French cultural exemption which has
as a purpose to protect cultural life in France itself, and which
is under the given circumstances rather successful. This quota policy
partly has been followed by the European Union. Earlier I indicated
that there is a shared interest of the United States and the European
Union in the field of intellectual rights. However, Krister Malm
and Roger Wallis put this in perspective. 'A growing number of European
nations had also begun to consider music quotas as a means of defending
local content against the flood of Anglo-American hit music emanating
from the media conglomerates. A US response to this came from the
American copyright organizations representing composers and publishers
(and thus, indirectly, even the media conglomerates). They warned
that protective national measures in Europe that were seen to discriminate
against US music could result in American cancelling their traditional
reciprocal relationships with their European national counterparts.
There was even a threat of starting to negotiate directly with radio
stations, which could result in US music being much cheaper than,
say, Swedish or French. Such a scenario was also being aggravated
by the increase in satellite radio and TV channels (channels which
do not respect national frontiers) and the emergence of bigger and
bigger media conglomerates which also live a global existence, floating
up above sovereign national states (1992: 2).'

In the context
of NAFTA Canada tried to build in a cultural exemption as well.
This does not seem to work. Leaving technical details beside, the
NAFTA provisions do not hinder that the Canadian market has been
flooded by American products. Moreover, a substantial increase in
the payments from the Canadian cultural sector to American producers
takes place, estimated $100 million, money which was supposed to
go to Canadian creators according to the 1988 Canadian Copyright
Act (Mosco, 1993: 199, 200).

Canada and the
European Union belong to the richest and most powerful parts of
the world. In the next part of this article we wonder what the position
is of poorer and less powerful nations and regions in the world
concerning the intellectual rights in the audiovisual and literary
fields. After this we must consider if it is right that the interests
of creators and performers of works of visual art, film, music,
dance and literature systematically have been put on the same line
as the interests of producers and other commercial interest groups,
as if they are the same which is obviously and mostly not the case.
At the end we may discuss whether trade and business interests should
be so dominant concerning our cultural heritage and future creations.
Is there any legitimation to use the word theft so easily speaking
on human creations which actually belong for a substantial part
to the common good and which are necessary for future creations?